After the blockbuster 2022 term of the Supreme Court, many are asking: what’s next? Conservatives had major wins on the issues of abortion, freedom of religion, and the administrative state. The wins were so encouraging that they led Charles Kesler to say 2022 was an Annus Mirabilis (a marvelous year), at least by comparison with the Annus Horribilis (horrible year) of 2020.
So- what’s next? Or more importantly, what should be next?
Justice Brennan’s legacy was perhaps the biggest loser in 2022. He who was a crucial vote for precedents like Roe and Lemon, and was the loudest voice for “living Constitutionalism.” What else did Brennan advance during his time on the court, besides abortion and secularism? Slanderous libel and obscenity. To attend to the most vexing damage to our Constitutional jurisprudence, a Conservative Court should address yet another area of the law with Justice Brennan’s fingerprints on it: the first amendment free speech precedents.
In the Roth case, Justice Brennan opened the pandora’s box to obscenity, which has never fully been closed since then. Brennan defended the legality of publishing pornography in the name of “freedom of expression,” his living constitutionalist gloss on “freedom of speech.” The real original intention of the free speech protection, which Brennan ignored, had nothing to do with artistic expression- if that’s even what smut is (it isn’t). The real intention of the free speech clause was to allow citizens and the press to criticize the government.
At the same time as he broadened the meaning of “speech”, Justice Brennan allowed for extreme and liscentious forms of criticism of the government through his Sullivan ruling. All of the Founders- even Jefferson- believed that the freedom of speech did not include the right to publish false and damaging libel about people. Unfortunately that original meaning of “free speech” has been utterly forgotten, even by otherwise solid originalist libertarian law professors who should know better.
That’s where a friend of this POMOCON substack, Carson Holloway, comes in. His excellent new publication “Rethinking Libel, Defamation, and Press Accountability” should be read by everyone who cares about the health of our polity. Consider this brilliant insight about the affect libel has had on our civil discourse:
The flourishing of our democracy requires that those elected to positions of public responsibility are, to the extent possible, people of ability and integrity. Human conditions are such that there is a limited number of such people available. A prudently constructed constitutional system, therefore, will not disincentivize their political participation. But this is precisely what the New York Times doctrine does. It necessarily diminishes the number of people who will be willing to serve in public life by making public figures bear a heightened risk to their reputations. We would certainly diminish the willingness of citizens to hold public office if they had to pay an additional tax for doing so. The same pernicious effect results from telling citizens that they must submit to defamation, without effective redress, if they choose to enter public life.
Diminishing the size of the pool of people willing to serve necessarily harms the public’s ability to choose those who will govern. Worse, the New York Times standard must also diminish the quality of the pool of people willing to serve. If the price of admission to public life is submission to defamation, then those citizens who are most solicitous of reputation, who care most about what their fellow citizens think of them, will be most deterred from public service. But those who are protective of their reputation are often the people of highest integrity. In any case, it is a poor policy that deters the honorable but not the shameless from entering public life.
In other words, the Sullivan standard will result in fewer George Washington’s, because leaders of that quality would be required to sacrifice their reputations thanks to unfair attacks. Federalist 10 talks about how better deliberation will result from getting as many good representatives as possible; there will be fewer of those in the Sullivan world. And as Lincoln says in his Lyceum address, this is the worst result of the danger of mob democracy- the tendency of deterring good men:
…good men, men who love tranquility, who desire to abide by the laws, and enjoy their benefits, who would gladly spill their blood in the defense of their country; seeing their property destroyed; their families insulted, and their lives endangered; their persons injured; and seeing nothing in prospect that forebodes a change for the better; become tired of, and disgusted with, a Government that offers them no protection; and are not much averse to a change in which they imagine they have nothing to lose. Thus, then, by the operation of this mobocractic spirit, which all must admit, is now abroad in the land, the strongest bulwark of any Government, and particularly of those constituted like ours, may effectually be broken down and destroyed--I mean the attachment of the People.
Consider also Solzhenitsyn criticism of the American press in his Harvard Speech:
Hastiness and superficiality—these are the psychic diseases of the twentieth century and more than anywhere else this is manifested in the press. In-depth analysis of a problem is anathema to the press; it is contrary to its nature. The press merely picks out sensational formulas.
So- if you are disgusted with today’s media environment- listen to Carson Holloway and be encouraged if the Supreme Court actually does something on this issue.
P.S.- A movie to understand the damage Sullivan can do is the 1980s classic An Absence of Malice, starring Paul Newman. Newman’s character has his reputation ruined by a reporter who then hides behind the Sullivan standard. I first watched the movie when Wilford Brimley died and they were talking about the films he was in. This scene with him was awesome -and tells you all you need to know about the ridiculousness of the “absence malice” standard in Sullivan:
Vg post, Chris. One hopes that last term is a harbinger. Of course, there's always the Roberts obstacle to overcome.
Dear CJ, yes, yes, & yes.
Carson Holloway & Wilford Brimley make a hell of a team!
Now, I would add to your very decent remarks that the problem we face is not ruining the reputations of our Washingtons, but that without reputation a Washington isn't possible--this is far more serious, far more relevant to the regime.